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Re: Rheinmetall Defence Australia Pty Ltd[2022] QIRC 440

Re: Rheinmetall Defence Australia Pty Ltd[2022] QIRC 440

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440

PARTIES:

Rheinmetall Defence Australia Pty Ltd

(Applicant)

CASE NO:

AD/2022/5

PROCEEDING:

Application

DELIVERED ON:

14 November 2022

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. The Orders are in terms set out in Schedule A in the reasons for decision.

CATCHWORDS:

EQUAL OPPORTUNITY AND – DISCRIMINATION – exemptions – race discrimination – application to grant exemption under s 113(1) of the Anti-Discrimination Act 1991 so the applicant can comply with US export control laws – whether exemption is necessary – whether exemption is reasonable and appropriate

HUMAN RIGHTS – whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019, when deciding to grant exemption – whether granting of the exemption sought affects a human right within the meaning of s 15(5) of the Human Rights Act 2019 – whether decision to grant exemption is compatible with human rights within the meaning of the Human Rights Act 2019 – purposive interpretation of s 113(1) of the Anti-Discrimination Act 1991 in a way that is compatible with human rights – application granted

LEGISLATION:

Anti-Discrimination Act 1991 ss 7, 13, 14, 15, 15A, 25, 113, 122, 123, 124, Sch 1

Human Rights Act 2019 ss 3, 5, 8, 13, 15, 25, 48, 58

US International Traffic in Arms Regulations §120, 126

US Arms Export Control Act

CASES:

Chivers v State of Queensland (Queensland Health) [2014] QCA 141

City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450

Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16

Exemption application re: Boeing Australia Holdings Pty Ltd and related entities [2003] QADT 21

Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) [2008] QADT 34

Exemption application re: Raytheon Australia Pty Ltd & Ors [2008] QADT 1

Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869

Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198

Qantas Airways Ltd v Christie (1998) 193 CLR 280

Re: Ipswich City Council [2020] QIRC 194

Re: Leidos Australia Pty Ltd [2021] QIRC 229

Re: Kalwun Development Corporation Limited [2019] QIRC 141

Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782

Sunshine Coast Regional Council [No.2] [2021] QCAT 439

United Synergies Ltd [2015] QCAT 89

Reasons for Decision

Introduction

  1. [1]
    On 31 January 2022 Rheinmetall Defence Australia Pty Ltd ('RDA') filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') ('the application').
  1. [2]
    The provisions of the AD Act that RDA seeks exemption from in the application are sections 7(g), 14(b), 14(d), 122, 123 and 124(1) of the AD Act in relation to the attribute of 'race' for a period of two years.[1] The term 'race' is defined in the Anti-Discrimination Act 1991 (Qld), Schedule 1 to include 'colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin'.
  1. [3]
    On 4 March 2022 in accordance with obligations pursuant to s 113(2) of the AD Act a copy of the application was emailed by the Registry to the Queensland Human Rights Commission ('QHRC'). The QHRC responded on 21 March 2022 with submissions and recommended certain directions with respect to notifying interested stakeholders and inviting their submissions. 
  1. [4]
    Directions were issued on 8 April 2022 directing RDA to serve a copy of their application on the Ethnic Communities Council of Queensland ('ECCQ') and the Queensland Council of Unions ('QCU') and invite their submissions in respect of the application.
  1. [5]
    No submissions were received from ECCQ. Following receipt of the submissions from both the QHRC[2] and the QCU[3] RDA then filed further submissions in support of their application on 27 June 2022.
  1. [6]
    In the further submissions filed by RDA the sections of the AD Act from which they sought exemption were expanded to include sections 13, 15, 15A, and 124. Further, the period of exemption sought was expanded to a period of five years ('the amendments').[4] There was no submission or explanation offered by RDA for the amendments. 
  1. [7]
    The QHRC was afforded an opportunity to file a reply to the further submissions of RDA and also had an opportunity to request a hearing of the matter. In an email to the Registry on 7 July 2022 the QHRC, having had notice of the further submissions of RDA, indicated it did not intend to file reply submissions and did not require a hearing of the matter.
  1. [8]
    During consideration of this application it became apparent that the directions issued on 3 June 2022 did not allow for service of the further submissions by RDA (including the amendments) on the QCU. Consequently, RDA was asked to provide their further submissions including the amendments to the QCU.[5] The Registry also corresponded with the QCU and asked that they file any further submissions and notify of any request for a hearing by 4pm on 7 November 2022.
  1. [9]
    No response was received from the QCU. In those circumstances I am content that the matter can now be determined on the papers. 
  1. [10]
    With respect to the amendments included in RDA's application I do not consider they materially alter the nature of the original application insofar as they extend to additional sections of the AD Act. Further, there was no objection to the extension to additional sections raised by the QHRC or the QCU. Accordingly I am prepared to allow the amendment with respect to the broader scope of sections proposed to be covered by the exclusion.  
  1. [11]
    The amendment to the period sought for the exemption is not insignificant. The increase to five years is not explained by RDA but (again) there was no objection raised by the QHRC or the QCU. I suspect the explanation is likely to be the discovery by RDA of the decision of Re: Leidos Australia Pty Ltd[6] ('Leidos') subsequent to filing their own application.
  1. [12]
    In the circumstances where there are no objections raised to the amendments I intend to consider the application for exemption in the expanded form particularised in the submissions filed by RDA on 27 June 2022.

Background

  1. [13]
    In its initial application and subsequent filed material[7] RDA outlines that it is a Queensland based Defence contractor. RDA is currently contracted to produce and supply combat reconnaissance vehicles to the Commonwealth of Australia and is in the final stages of the request for tender of the delivery of over 450 Infantry Fighting Vehicles. They also perform service and maintenance tasks for RDA's sister entity.
  1. [14]
    RDA has over 400 employees and continues to grow its workforce. Employees are engaged in jobs ranging from administration and business support to software and vehicle engineering. The teams include project managers, finance, procurement, health and safety, defence security, logistics, legal and commercial, and trade workers.

The Application

  1. [15]
    RDA contends that they require an exemption to ensure compliance with international policy, namely the US export control laws. RDA's contract with the Commonwealth means that in the course of performing their obligations under these contracts, they will receive equipment and technical data controlled under the United State of America's Military arms export legislation.
  1. [16]
    The United States Department of State is responsible for the export and temporary import of defence articles and services governed by 22 USC 2778 of the Arms Export Control Act ('AECA') and Executive Order 13637. The International Traffic in Arms Regulations ('ITAR') (22 CFR 120-130) implements the AECA.
  1. [17]
    The ITAR controls all US military technology and those in possession of it wherever it is in the world. It prohibits the sharing of US technology and data with persons who hold or have held citizenship or permanent residency in a group of specified countries. Through its contract with the Commonwealth RDA comes into possession of such regulated technology and data. Accordingly, the ITAR and the AECA apply to RDA while they are in receipt of equipment and technical data of a controlled nature ('controlled data').
  1. [18]
    A failure to comply with the AECA and ITAR controls and restrictions would make RDA liable to sanctions including criminal charges and fines. It would also lead to loss of export privileges and access to technology, which would result in the termination of contracts and subsequently the loss of work for employees.
  1. [19]
    §126 of the ITAR contains general policies and provisions. §126.1 addresses prohibited exports, imports and sales to or from certain countries. A policy of denial applies to a number of countries, including Afghanistan, Cambodia, Central African Republic, Cyprus, Democratic Republic of Congo, Ethiopia, Eritrea, Haiti, Iraq, Lebanon, Libya, Russia, Somalia, South Sudan, Sudan and Zimbabwe ('proscribed countries').[8]
  1. [20]
    §120.19(2)(b) of the ITAR provides:

Any release outside the United States of technical data to a foreign person is deemed to be a reexport to all countries in which the foreign person has held or holds citizenship or holds permanent residency.

  1. [21]
    RDA submits that when hiring employees it is inevitable that some will require access to controlled data to fulfil their duties from time to time. §120.19 and §126.1 of the ITAR prevent RDA from sharing controlled data with persons who hold citizenship or permanent residency in the countries listed. RDA is required to adhere to the ITAR because they hold the controlled data as part of their contracts with the Commonwealth. These circumstances form the basis for RDA's application for exemption.
  1. [22]
    RDA further submits the circumstances of the exemption would be narrow because positions that do not involve access to controlled data would not be subject to this exemption. Specifically, RDA lists the positions which would be affected as follows ('the relevant positions'):
  1. (i)
    Vehicle and software engineering for LAND 121 Phase 3b, LAND 121 Phase 5b, LAND 400 Phase 2 and LAND 400 phase 3;
  1. (ii)
    Field Service Representatives – Logistic Vehicles as well as Boxer and Lynx;
  1. (iii)
    Project management positions;
  1. (iv)
    Radio and electronics technicians;
  1. (v)
    Trade compliance (export control) officers; and
  1. (vi)
    Warehouse and logistics personnel.[9]
  1. [23]
    RDA submits the exemption sought would be used to allow it to request information from applicants for relevant positions about their citizenship or permanent residency status in order to allow it to comply with its obligations under the AECA and ITAR and avoid the hiring of citizens or permanent residents from countries listed at ITAR §126.1. RDA submits there are no alternatives to the exemption.

Procedural matters required by s 113(2) of the AD Act

  1. [24]
    Pursuant to s 113(2) of the AD Act, before deciding an application, the Commission must provide a copy of the application and material filed in support of the application to the QHRC and have regard to any submission made by the QHRC on the application, including any submission on the process for considering the application.
  1. [25]
    The details of compliance with s 113(2) of the AD Act are set out above.

The relevant legislative provisions

The AD Act

  1. [26]
    Section 13 of the AD Act provides:

13  Explanatory provision (prohibitions)

  1. (1)
    A person must not discriminate in the work or work-related area if a prohibition in sections 14 to 23 applies.
  1. (2)
    This subdivision does not apply to discrimination in connection with superannuation or insurance.
  1. (3)
    Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75.
  1. [27]
    Sections 15 and 15A address discrimination as follows:

15  Discrimination in work area

  1. (1)
    A person must not discriminate—
  1. (a)
    in any variation of the terms of work; or
  1. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  1. (c)
    in dismissing a worker; or
  1. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  1. (e)
    in developing the scope or range of such a program; or
  1. (f)
    by treating a worker unfavourably in any way in connection with work.
  1. (3)
    In this section—

dismissing includes ending the particular work of a person by forced retirement failure to provide work or otherwise.

15A  Discrimination by principals

  1. (1)
    This section applies if a person (the worker) does work, or is to do work, for another person (the principal) under or because of—
  1. (a)
    a contract between the principal and a third person; or
  1. (b)
    another arrangement, or a series of arrangements, involving the principal and a third person, whether or not the arrangement or series of arrangements also involves other persons.
  1. (4)
    The principal must not discriminate against the worker—
  1. (a)
    in the terms in which the principal allows the worker to work; or
  1. (b)
    by not allowing the worker to work or continue to work; or
  1. (c)
    by denying or limiting access by the worker to any benefits connected with the work; or
  1. (d)
    by treating the worker unfavourably in any way in connection with the work.
  1. (3)
    This section does not limit section 15.
  1. [28]
    The Commission has the power to grant exemptions in relation to work-related matters.[10] Section 113(1) of the AD Act relevantly provides that on application by a person, the Commission may grant an exemption to the person from the operation of a specified provision of the act. Section 113 of the AD Act is in the following terms:

113  Tribunal

  1. (1)
    The tribunal, on application by—
  1. (a)
          a person, on the person's own behalf, or on behalf of the person and another person or other people; or
  1. (b)
          2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or
  1. (c)
          a person or people included in a class of people on behalf of the people in that class;

may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.

Note—

See also section 174C in relation to the tribunal's powers for deciding the application.

…

  1. (6)
    An exemption—
  1. (a)
         may be granted subject to such terms as the tribunal provides; and
  1. (b)
         may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and
  1. (c)
         is to be granted for a specified period of not more than 5 years.
  1. (7)
    An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted.

…

  1. [29]
    Section 7(g) of the AD Act prohibits discrimination on the basis of the attribute of 'race'.
  1. [30]
    Section 14, of the AD Act 'Discrimination in the pre-work area' relevantly provides:

A person must not discriminate—

  1. (a)
    in the arrangements made for deciding who should be offered work; or
  2. (b)
    in deciding who should be offered work; or
  3. (c)
    in the terms of work that is offered, including, for example, term about when the work will end because of a person's age; or
  4. (d)
    in failing to offer work; or

…

  1. [31]
    Section 122 of the AD Act outlines that a person must not request or encourage another person to contravene the act.
  1. [32]
    Section 123 of the AD Act outlines:

If –

  1. (a)
    a person requests or encourages another person to contravene the Act; and
  1. (b)
    the other person acts, or attempts to act, on the request or encouragement;

both are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

  1. [33]
    Section 124(1) of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based.
  1. [34]
    The discretion conferred by s 113 of the AD Act is broad.[11] A number of authorities have developed a suite of considerations to which regard might be had in the exercise of the discretion:[12]
  1. (a)
    Whether the exemption is necessary;[13]
  1. (b)
    Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;[14]
  1. (c)
    Whether the exemption is in the community interest;[15]
  1. (d)
    Whether any other persons or bodies other than RDA support the application;[16]
  1. (e)
    Whether it is reasonable and appropriate to grant the exemption;[17] and
  1. (f)
    The effect of not granting the exemption.[18]
  1. [35]
    These considerations will be addressed in turn in my consideration below.

The Human Rights Act

  1. [36]
    In addition to the considerations under the AD Act, the Commission must also consider the impact of any order in the context of the Human Rights Act 2019 (Qld) ('HR Act').
  1. [37]
    The primary objectives of the HR Act are to protect and promote human rights.[19] In Re: Ipswich City Council,[20] Deputy President Merrell confirmed the Commission is acting in an administrative capacity when deciding an exemption under section 113 of the AD Act. He further concluded that the combined effect of ss 5(2)(a) and 48 of the HR Act is that the Commission, when interpreting s 113 of the AD Act, must comply with s 48 of the HR Act.
  1. [38]
    Section 58 of the HR Act provides:

58  Conduct of public entities

  1. (1)
    It is unlawful for a public entity—
  1. (a)
    to act or make a decision in a way that is not compatible with human rights; or
  1. (b)
    in making a decision, to fail to give proper consideration to a human right relevant to the decision.

…

  1. (5)
    For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
  1. (a)
    identifying the human rights that may be affected by the decision; and
  1. (b)
    considering whether the decision would be compatible with human rights.
  1. (6)
    To remove any doubt, it is declared that—
  1. (a)
    an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1. (b)
    person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
  1. [39]
    Human rights is defined under the HR Act to mean the rights stated in pt 2 divs 2 and 3. Part 2, division 2 deals with particular civil and political rights, with the first found in s 15:

15  Recognition and equality before the law

  1. (1)
    Every person has the right to recognition as a person before the law.
  1. (2)
    Every person has the right to enjoy the person's human rights without discrimination.
  1. (3)
    Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1. (4)
    Every person has the right to equal and effective protection against discrimination.
  1. (5)
    Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [40]
    Section 25 of the HR Act provides for the right to privacy as follows:

25  Privacy and reputation

A person has the right –

  1. (a)
    not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  1. (b)
    not to have the person's reputation unlawfully attacked.
  1. [41]
    Section 8 of the HR Act defines 'compatible with human rights' as follows:

8     Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

  1. (a)
    does not limit a human right; or
  1. (b)
    limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
  1. [42]
    Section 13 of the HR Act provides that human rights may be limited as follows:

13  Human rights may be limited

  1. (1)
    A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. (2)
    In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1. (a)
    the nature of the human right;
  1. (b)
    the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. (c)
    the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. (d)
    whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. (e)
    the importance of the purpose of the limitation;
  1. (f)
    the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. (g)
    the balance between the matters mentioned in paragraphs (e) and (f).
  1. [43]
    Section 5 of the HR Act relevantly provides as follows:

5  Act binds all persons

  1. (1)
    This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.
  1. (2)
    This Act applies to—
  1. (a)
         a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and
  1. (b)
         the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and
  1. (c)
         a public entity, to the extent the public entity has functions under part 3, division 4.
  1. (3)
    Subsection (2) does not limit or otherwise affect—
  1. (a)
         another function conferred by this Act on an entity mentioned in the subsection; or
  1. (b)
         a function conferred by this Act on any other entity.
  1. (4)
    Nothing in this Act makes the State liable to be prosecuted for an offence.
  1. [44]
    Consequently, pursuant to s 5(2)(a) of the HR Act, the HR Act applies to a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3 of the HR Act.
  1. [45]
    Section 48 of the HR Act provides:

48  Interpretation

  1. (1)
    All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
  1. (2)
    If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
  1. (3)
    International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
  1. (4)
    This section does not affect the validity of—
  1. (a)
    an Act or provision of an Act that is not compatible with human rights; or
  1. (b)
    a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
  1. (5)
    This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [46]
    Accordingly s 113 of the AD Act must be interpreted in a way that is most compatible with human rights to the extent possible, consistent with its purpose.

Submissions of the QHRC

  1. [47]
    The QHRC refer to the statutory obligations of the Commission in considering RDA's Application. The QHRC confirm the onus rests with RDA to establish the exemption is necessary, and that the genuine occupational requirements exception in s 25 of the AD Act cannot adequately address the needs of RDA.
  1. [48]
    The QHRC submits that the requirement to make a decision and to interpret statutory provisions in a way that is compatible to human rights necessitates the application of the test in s 13 of the HR Act in determining any limitation on human rights is reasonable and demonstrably justified. They submit the human rights relevant to the application are the right to privacy, and the right to equality and protection before the law.
  1. [49]
    In its submissions the QHRC summarises similar applications made in Queensland and other states:
  • The first application for this type of exemption was an application made by Boeing Australia Holdings Pty Limited in 2003, in which the former Anti-Discrimination tribunal granted an exemption to allow Boeing and its associated companies to discriminate in the pre-work areas for fulfilling its contractual obligations to be compliant with ITAR and EAR for a five-year period.[21] The QHRC notes there was no consultation and the application was dealt with by the tribunal ex parte on the papers.
  • Since 2003, similar exemptions have been granted in other states. In Queensland, an exemption was granted to Raytheon Australia Pty Ltd for three years with stricter conditions than the earlier Boeing exemption, including half-yearly reporting to the Anti-Discrimination Commission Queensland on steps taken to comply with the conditions, the number of persons affected by the exemption granted and details of the effect, and implementation and compliance generally.[22]
  • In 2008, Boeing applied for a further exemption in Queensland. After public consultation and a public hearing, the tribunal found that it was an inherent requirement of the position that a person not be of a particular nationality or born in a particular country and that this information needed to be known to Boeing before entering into an employment contract. The tribunal found s 25 of the AD Act applied, and thus no exemption under s 113 was necessary. They further found Boeing had not satisfied the tribunal that the exemption was necessary, and the application was dismissed.[23] Since this decision, there has only been one application for an exemption of a similar nature.[24]
  1. [50]
    The QHRC noted that RDA has not particularised the terms of the exemption which it seeks and notes in Leidos the exemption granted was in very limited terms. The QHRC closed its submissions by contending that RDA should have an opportunity to make further submissions in relation to the exemption application, and the application of s 25 of the AD Act, and to advise the form of the exemption it seeks. If the genuine occupational requirement exception in s 25 of the AD Act applies, then the QHRC contends it is not necessary to grant the s 113 exemption sought.

Queensland Council of Unions Submissions

  1. [51]
    The QCU filed submissions on 16 May 2022.
  1. [52]
    The QCU submits the RDA has not specifically explained in their application how the recruitment and placement of potential employees from the proscribed countries would be effected, other than to suggest what they propose to do in the recruitment phase (which would be in contravention of the AD Act).
  1. [53]
    The QCU further notes that no submission has been made by RDA in relation to whether they believe s 25 of the AD Act could adequately address the needs of RDA.
  1. [54]
    The QCU comprehensively summarises the legislation and confirms the considerations which may assist the Commission in exercising its discretion pursuant to s 113 of the AD Act.
  1. [55]
    The QCU submits there is no evidence before the commission to assess RDA's submission that the proposed exemption is necessary to lawfully perform its activities in Queensland. The QCU submits that evidence and/or undertakings from RDA would be required in relation to:
  1. (a)
    Why the exemption is necessary in relation to the specified positions, including as to how any conditions might address any human rights and anti-discrimination considerations;
  2. (b)
    Whether RDA proposes to provide express notice about any action permitted by any exemption to any applicants or potential applicants that they may be adversely affected by any exemptions on account of their citizenship status or prior status;
  3. (c)
    Whether RDA proposes to provide a reasonable explanation in plain English of the nature of any adverse effects of such action to any relevant applicants;
  4. (d)
    Whether RDA's employment policies refer to the terms and conditions of any exemption and make it clear that the purpose of requiring information regarding nationality is solely to enable compliance with its contractual/security requirements;
  5. (e)
    How the specified positions will be affected by any proposed “hiring” or “contemplating hiring”;
  6. (f)
    How RDA might seek the assistance of the US State Department, or for that matter the Commonwealth, in ensuring adequate protections are otherwise afforded;
  7. (g)
    Whether there are any steps in addition to those outlined in paragraph 14 of RDA's submission that might also require any exemption, noting that in other matters, recruitment processes have been thoroughly particularised for the consideration of the Tribunal;
  8. (h)
    Whether RDA will establish reporting procedures for the QHRC to consider in detail:
    1. steps it proposes to comply with any exemption
    2. the number of persons affected by the exemption;
    3. the nature of the effects and the steps taken to address any adverse effects; and
    4. the implementation of and compliance with the terms of any exemption.[25]

Further submissions of RDA

  1. [56]
    RDA provided further submissions which comprehensively address the various concerns raised by the QHRC and QCU in their submissions summarised above. RDA also filed two sworn affidavits verifying the nature of the organisation and outlining the US export control laws and why compliance with the laws is required.[26]
  1. [57]
    Noting the submission of the QHRC in relation to not particularising the terms of the exemption sought, RDA responds by submitting the order it seeks is 'analogous with those granted by this Commission in Leidos'. To address the asserted lack of particulars RDA provides the order sought in Appendix A of its submissions as follows:
  1. Pursuant to section 113 of the Act and subject to the conditions contained in the Schedule, an exemption is granted to the Applicant from the operation of sections 14, 15, 15A, 122, 123 and 124 of the Act for a period of 5 years from the date this order is made.
  1. The exemption is granted in respect of the operation of sections 14, 15, 15A, 122, 123 and 124 of the Act insofar as those sections relate to the 'race' (as that attribute is defined in section 4 of the Act) of the Applicant's workforce.
  1. The exemption permits the Applicant to engage in the following activities:

Applicants for employment

  1. (a)
    Inform applicants for employment or contract work in roles which require access to Controlled Material and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they:
  1. (i)
    are not an Australian citizen; or
  1. (ii)
    hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or
  1. (iii)
    hold permanent residency in a country or countries other than the US or Australia;
  1. (iv)
    have substantive contacts with countries proscribed by section 126.1 or ITAR;

Request for information about nationality

  1. (b)
    Request and maintain records of information from Personnel who perform or may perform work on the Applicant's premises or offsite and who are subject to the Applicant's control and direction for positions related to projects which use Controlled Material, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities, or substantiative contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, provided the request for information is limited to information for the purposes of paragraphs (c) to (l) below:

Use of nationality information

  1. (c)
    Impose a condition of any offer of employment in roles which are likely to require access to Controlled Material that an applicant for those roles must, pursuant to ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise;
  1. (d)
    Take into account current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts of personnel where such contacts are affiliated with countries proscribed by section 126.1 of ITAR in determining whether those personnel may be offered a role or allocated work that involves access to Controlled Material;
  1. (e)
    Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race and nationalities and substantive contacts of personnel who have or may have access to Controlled Material;
  1. (f)
    Require personnel involved in projects which access Controlled Material to notify the Applicant of any change to their citizenship or permanent residency status, nationalities or substantive contacts;
  1. (g)
    Restrict access to Controlled Material to particular personnel based on their current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR;
  1. (h)
    Record information relating to security clearances granted to personnel who are under the control and the direction of the Applicant in relation to work requiring access to Controlled Material;
  1. (i)
    Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;
  1. (j)
    Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities of persons who have or will have access to Controlled Material, with distribution limited to only those persons with a need to know, for the purposes of determining their ability to participate in a particular engagement.
  1. (k)
    Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of Controlled Material;
  1. (l)
    Disclose, if and when required, current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, of the Applicant's personnel in Queensland to:
  1. (i)
    the US Department of State;
  1. (ii)
    the US Department of Commerce;
  1. (iii)
    the Australian Department of Defence; and
  1. (iv)
    any other person or organisation for which, or on whose behalf, or at whose request the Applicant undertakes work in respect of which the Applicant has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities.
  1. In this exemption:
  1. (a)
    "Act" means the Anti-Discrimination Act 1991;
  1. (b)
    "Applicant" means Rheinmetall Defence Australia Pty Ltd
  1. (c)
    "Controlled material" means material (including equipment, technology, articles and services) and information (including classified or sensitive information and technical data) to which the security requirements apply;
  1. (d)
    "EAR" means the Export Administration Regulations of the US;
  1. (e)
    "ITAR" means the International Trafficking in Arms Regulations of the US;
  1. (f)
    "Personnel" means the current and prospective workforce of the Applicant, including employees, contract workers, employees of contractors and candidates or applicants for these roles;
  1. (g)
    "Security requirements" means any of the following:
  1. (i)
    requirements of Australian or US laws, including but not limited to ITAR and EAR, including requirements of any permit, licence or approval granted, or agreement made, under those laws;
  1. (ii)
    contractual requirements applying to the Applicant and relating to any of the requirements mentioned in subparagraph (i) above.
  1. (h)
    "US" means United States of America.

Schedule: Conditions

  1. This exemption applies only to the Applicant's conduct where:
  1. (a)
    it is necessary to enable the Applicant to obtain and maintain US export licenses and approvals or to perform contractual obligations which involve access to Controlled Material;
  1. (b)
    the Applicant has taken all steps reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A, 122, 123 and 124 of the Act, including:
  1. (i)
    reliance of ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;
  1. (ii)
    where personnel are nationals or dual nationals of a country not approved for access to Controlled Material, then the Applicant will either request the US Department of State, or request the relevant export license holders to request the US Department of State to amend the relevant export licenses to enable those personnel to have access to Controlled Material, unless the Applicant, on reasonable grounds, determines that either:
  1. (A)
    the personnel are not the best candidate for the relevant position; or
  1. (B)
    such an application does not have significant prospects of success,
  1. (iii)
    in the event the US Department of State requires the Applicant to provide further information specific to an individual, then with the consent of the individual, the Applicant will work with the individual to supply all relevant information to the US Department of State so than an application for approval may be made in relation to that individual.
  1. Where, pursuant to this exemption, the Applicant wishes to reserve the right to make a conditional offer of employment in relation to a position which will or may involve access to Controlled Material, any advertisement, invitation for expressions of interest, or other promotional information referring to the position must include the information that:
  1. (a)
    the position will or is likely to require access to Controlled Material and that any individual occupying the position must be able to satisfy the ITAR-based requirements which may require specific authorisation for that individual to access Controlled Material; and
  1. (b)
    if a candidate for the position is concerned as to whether or not they will satisfy the requirement in (a) above, the candidate should contact a nominated member of the Applicant's personnel who is able to provide relevant information, including information about the scope of the exemption and the candidate's individual rights.
  1. If directed to do so by the Commission RDA will provide to the Queensland Human Rights Commission a written report for every 12-month period from the date of this exemption order. Each report must be provided within 21 days from the end of the relevant reporting period. Each report must detail:
  1. (a)
    the steps it has taken to comply with the terms of the exemption;
  1. (b)
    the number of persons affected by the exemption, the nature of the effects and the steps taken to redress any adverse effects; and
  1. (c)
    the implementation of and compliance generally with the terms of the exemption.[27]
  1. [58]
    In addressing the considerations the Commission can utilise to assist in determining whether they exercise their discretion to grant an exemption, RDA submits:
  • RDA must comply with the US export control laws to fulfil their Commonwealth contracts;
  • The Australian government supports compliance with the US export control laws such as ITAR;
  • ITAR requires there to be a restriction of people from proscribed countries, which effectively discriminates against them on the basis of race;
  • The granting of the exemption will save jobs in Queensland, which RDA submits will add success to the Queensland economy and is subsequently in the community interest;
  • Granting the exemption will improve the capability of the Australian Defence Force, and will ensure public funds are not wasted because the Commonwealth contracts will be able to be completed; and
  • The Commission has granted orders in similar terms.
  1. [59]
    RDA submits s 25 of the AD Act cannot be relied on for the same reason stated by the applicant in Leidos i.e. because the method used to recruit and access roles are analogous to the methods used by Leidos Australia Pty Ltd.
  1. [60]
    RDA elaborates that it is not always known at the time of creating a role whether the role will require access to ITAR data.[28] It is thus difficult for RDA to make its ITAR compliance requirements clear during the recruitment process as a genuine occupational requirement.
  1. [61]
    RDA submits their orders sought are to the lowest minimum to ensure a balance is struck between compliance with the US export control laws and maintaining human rights in relation to race. RDA confirms the exemption will only be applied to employees who have or will likely have access to controlled data to ensure compliance with the US laws.[29]

Consideration

Section 25 of the AD Act

  1. [62]
    The AD Act provides that it is not unlawful to discriminate in the work or work related area if a prescribed exemption applies.  The AD Act provides that a person may impose a genuine occupational requirement for a position.[30] Section 25 of the AD Act could apply in circumstances where a role required the person performing it to have access to controlled material.
  1. [63]
    RDA submits section 25 of the AD Act has no practical application in their operational circumstances. The way RDA recruit or provide access to various roles within their operations is similar to the practices described by Leidos Australia Pty Ltd in Leidos.[31] In Leidos, it was submitted that a particular nationality was not an essential requirement of a position.
  1. [64]
    The meaning of 'inherent requirement' was considered in Qantas Airways Ltd v Christie[32] ('Christie'). It has since been considered and applied when considering s 25 of the AD Act and the meaning of genuine occupational requirement.[33]
  1. [65]
    Christie considered an inherent requirement as follows:[34]

... an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.

  1. [66]
    In Christie, McHugh J also outlined the difference between the requirements for the position as opposed to the requirements of a job:[35]

In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the “job” of President if that term refers to the work done by the President.

  1. [67]
    In Leidos Hartigan IC held:

[86] On the material before me, I am not satisfied that it is an inherent requirement of the position and consequently, a genuine occupational requirement, that workers at Leidos access Controlled Materials. Relevantly, Leidos seeks the exemption only insofar as some of its personnel may, at times, be required to access Controlled Material, when working on a particular project or part of a project or program. Not all work undertaken by personnel engaged by Leidos requires access to Controlled Material. Leidos argues that given the nature of the work it performs, including in designing software, it is difficult to predict with certainty, what information an employee will need to have access to at the commencement of a project and further at the time the worker is engaged. It states that it might be the case that for several stages of a project, that it would not be necessary for a worker to access Controlled Material, and accordingly, it would not be an inherent requirement of the position. Alternatively, a worker might be engaged to work on one project where access to Controlled Material is not necessary and then transition into a different project where such access was necessary.

[87] I accept that the evidence relied on by Leidos as to how it operates its business and how it manages personnel. On that evidence, it is not essential to the position to, at all times, have access to Controlled Material. Accordingly, it is not essential to the position and does not form a genuine operational requirement. 

[88] On the information before me, I am unable to conclude that s 25 of the AD Act applies.

  1. [68]
    In the circumstances I consider the same conclusion can be reached in respect of RDA. Given that not every role at RDA requires access to controlled data, or not every employee working e.g. from project to project, will be required to access controlled data on every project, there is no ability to accurately anticipate when (or if) an employee may be required to access controlled data and as such, it cannot be said that nationality forms the basis of an inherent requirement.
  1. [69]
    Consequently, I am satisfied that s 25 of the AD Act cannot adequately be applied to allow RDA to comply with its AECA and ITAR obligations. 

Application of the HR Act

  1. [70]
    The effect of the exemption being would be to allow RDA to seek and use personal information with respect to a person's nationality, citizenship and place of birth when engaging a person to work in aspects of the business. These proposed practices undoubtedly contravene the HR Act.
  1. [71]
    I have referred to section 15 of the HR Act above. The human rights contained in sections 15(3) and 15(4) would be impacted by granting the exemption sought by RDA in that it would allow discriminatory conduct to occur, impacting a person's entitlement to equal protection of the law without discrimination and a person's right to equal and effective protection against discrimination.
  1. [72]
    Section 13 of the HR Act provides that human rights may be subject to 'reasonable limitations' that can be 'demonstrably justified'.
  1. [73]
    In the circumstances where the exemption sought will undoubtedly limit the prescribed protections, there will need to be consideration of the broader provisions of s 13(2) of the HR Act. The items for consideration set out at s 13(2)(a)-(g) of the HR Act are an interdependent list of items, none of which carries any particular weight by comparison to the other. Further, the considerations identified in s 13(2) of the HR Act are included in only on the basis that they 'may' be relevant. 
  1. [74]
    Given the broad language of s 13(2) of the AD Act I consider that the appropriate approach to its application is a holistic consideration of all of the listed items to the extent that each or any of them may be relevant to the facts in issue. 

The nature of the human right

  1. [75]
    The relevant human rights in this application are the rights to equal protection of the law without discrimination and the right to equal and effective protection from discrimination.[36]

The nature and purpose of the limitation

  1. [76]
    Section 13(2)(b) of the HR Act provides that the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom must be considered when determining if the limitation on a human right is reasonable and justifiable.
  1. [77]
    Excluding individuals from employment on the basis of their race is an outrageously offensive proposition in the context of ordinary employment practices in a typical workplace. But as the circumstances of this matter reveal, this is not a typical workplace.   
  1. [78]
    The discriminatory implications of utilising nationality information to determine suitability for employment within RDA's workforce must be balanced with the stated purpose of the exemption. RDA's exemption is for the purpose of ensuring compliance with US export control laws, which enables access to controlled data. RDA submits this is essential for the fulfilment of the Commonwealth contracts. While the fulfilment of its contracts is no doubt important to RDA, in my view the nature and purpose of the limitation is far wider reaching and important than just RDA's contractual obligations. The limitations sought by RDA are not a mere matter of contractual compliance. They are intended to give effect to the restrictions imposed by ITAR.
  1. [79]
    The restrictions imposed by ITAR are fundamentally founded in matters of both national and international security. Controlled data is so controlled to ensure defence capabilities are not compromised or otherwise misused in a manner that may potentially harm the very society they are designed to protect. The Commonwealth government is equally bound and supports these restrictions given their critical contribution to national security.
  1. [80]
    It is an age old dichotomy that a truly free and democratic society will require robust defences to protect those freedoms but in establishing those robust defences, some freedoms will be lost.  When one considers the purpose of the limitations in this context it is readily appreciable that they are consistent (and necessary) for the preservation of a free and democratic society.
  1. [81]
    In the circumstances having regard to the purpose relied on by RDA and the broader purpose, I consider the limitation is justified.

The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose

  1. [82]
    There is an obvious relationship between the limitation and its purpose in that it is essential for RDA to impose it in order for them to comply with their contractual obligations. But again, there is a broader purpose to the limitation that is equally compelling in my view.
  1. [83]
    Further to my comments above, there is a clear and direct relationship between limiting access to controlled data for national or international security reasons by limiting the human rights of persons of a particular national origin. The limitations proposed will achieve the intended purpose but without any collateral consequences. 
  1. [84]
    In those circumstances the proposed limitation will be effective in achieving the purpose of managing controlled data while at the same time, imposing the narrowest possible restriction on human rights to fit the circumstances.      

Whether there are any less restrictive and reasonably available ways to achieve the purpose

  1. [85]
    RDA submits that there is no less restrictive or alternative method to ensure compliance with the US export control laws, and to subsequently ensure the Commonwealth contracts can be fulfilled, whilst having the lowest impact on employees human rights in relation to race. 
  1. [86]
    For many of the reasons outlined above I agree with RDA. It is a rather simplistic proposition i.e. that certain identified nationalities be excluded from working in roles that require access to controlled data. The proposal by RDA does not seek to prevent persons with the prescribed nationality from being employed at all, simply in certain limited roles.
  1. [87]
    In the circumstances I agree that there is no less restrictive way to achieve this purpose.  

The importance of the purpose of the limitation, the importance of preserving the human right and finding a balance between the two

  1. [88]
    In its affidavit evidence, RDA notes the importance of the fulfilment of the Commonwealth contracts, noting that failing to service the contracts may result in many workers losing their employment in Queensland, as well as the impact it may have on the capabilities of the Australian Defence Force. But this is only one of the purposes for the limitation.
  1. [89]
    The maintenance of a robust defence system is of critical importance to the wellbeing of every person that system is designed to protect. The right to e.g. protection from discrimination for a select group of individuals who may seek employment with RDA, while very important, pales by comparison to the national security of an entire society.
  1. [90]
    Consequently, I am satisfied that that the purpose of the limitation is paramount to the human rights being limited.

Application of the AD Act

  1. [91]
    Section 113 does not provide the criteria for the exercise of the discretion to grant an exemption. In Exemption application re: Boeing Australia Holdings Pty Ltd and Ors[37] the (then) President of the Anti-Discrimination Tribunal outlined several criteria to be applied when considering an exemption application pursuant to section 113.[38]

Is the exemption necessary?

  1. [92]
    The conduct which RDA proposes to engage is discriminatory. Therefore, for the proposed conduct to be lawful it will be necessary for RDA to obtain an exemption.
  1. [93]
    Further, having regard to my reasons set out above I can conclude the exemption is necessary. 

Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought?

  1. [94]
    RDA has not identified any non-discriminatory ways of achieving the object or purpose for which the application is sought. RDA notes the exemption will only apply in narrow circumstances, and that they will take reasonable steps to avoid what would otherwise be a breach of the AD Act provisions (as set out in their proposed order).
  1. [95]
    I am satisfied that in the context of the nature of the exemption, there are not any non-discriminatory ways available to achieve their purpose.

Is the exemption in the community interest?

  1. [96]
    RDA confirms through its affidavit evidence that the purpose of the exemption is to comply with the US export control laws, which controls all US military technology no matter how small, anywhere in the world. Failure to comply with the US export control laws attracts significant financial and reputational penalties for individuals and RDA.
  1. [97]
    I consider that granting the exemption will permit RDA to lawfully conduct its business, which has implications for the broader community, and for national security. It is in the interests of the community that the Commonwealth contracts are fulfilled.
  1. [98]
    I further conclude that the exemption will promote robust defence capabilities which are, without question, very much in the community interest.

Are there any other persons or bodies other than RDA that support the application?

  1. [99]
    There is no evidence before me that any other person or body, other than RDA, support the Application. That said, I note that as a contractor to the Commonwealth government, the restrictive employment practices proposed will invariably be supported at that level and the ITAR restrictions likely apply to the Commonwealth government also. 

The effect of not granting the exemption

  1. [100]
    It is apparent that a failure to grant the exemption would expose RDA to a risk that it may unlawfully breach a provision of the AD Act or alternatively, expose them to liability for breaching US export control laws. The exemption will provide RDA with certainty to advertise and recruit for positions in its organisation without exposure of complaints stemming from a requirement that would normally be unlawful under the AD Act.
  1. [101]
    I accept that if the exemption is not granted, RDA would be unable to lawfully conduct its business activities to comply with US export control laws. Without access to the controlled material such as the controlled data, RDA will not be able to fulfil its contractual obligations to the Commonwealth and thus will not be able to provide services that support Australia's Defence interests.

Whether it is reasonable and appropriate to grant the exemption

  1. [102]
    In addressing this point, RDA submits that the Commission and similar jurisdictions have granted exemptions of a similar nature previously.[39] In those circumstances and for the reasons above, I consider it is reasonable and appropriate to grant the exemption.

Terms of the exemption sought

  1. [103]
    Section 113(6)(c) of the AD Act provides that an exemption is to be granted for a specified period of not more than five years. I will grant the exemption for a period of five years from the date of the order.

Conclusion

  1. [104]
    For the above reasons, I grant the exemption sought by RDA.

Orders

  1. [105]
    I will make an order in terms of Schedule A of this decision.

Schedule A

It is ordered that:

  1. Pursuant to section 113 of the Act and subject to the conditions contained in the Schedule, an exemption is granted to the Applicant from the operation of sections 14, 15, 15A and 124 of the Act for the period from 14 November 2021 to 14 November 2026.
  1. The exemption is granted in respect of the operation of sections 14, 15, 15A and 124 of the Act insofar as those sections relate to the 'race' (as that attribute is defined in section 4 of the Act) of the Applicant's workforce.
  1. The exemption permits the Applicant to engage in the following activities:

Applicants for employment

  1. (a)
    Inform applicants for employment or contract work in roles which require access to Controlled Material and are subject to permits, licenses, approvals or agreements made under US and Australian import and export control laws that they may be adversely affected by ITAR and EAR controls if they:
  1. (i)
    are not an Australian citizen; or
  2. (ii)
    hold, or have held, dual nationality and/or citizenship from countries other than the US or Australia; or
  3. (iii)
    hold permanent residency in a country or countries other than the US or Australia;
  4. (iv)
    have substantive contacts with countries proscribed by section 126.1 or ITAR;

Request for information about nationality

  1. (b)
    Request and maintain records of information from Personnel who perform or may perform work on the Applicant's premises or offsite and who are subject to the Applicant's control and direction for positions related to projects which use Controlled Material, in relation to current citizenship, prospective citizenship, previous citizenships, permanent residency, race or nationalities, or substantiative contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, provided the request for information is limited to information for the purposes of paragraphs (c) to (l) below:

Use of nationality information

  1. (c)
    Impose a condition of any offer of employment in roles which are likely to require access to Controlled Material that an applicant for those roles must, pursuant to ITAR, be authorised to access that Controlled Material, whether pursuant to an individual approved obtained from the US Department of State or otherwise;
  1. (d)
    Take into account current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts of personnel where such contacts are affiliated with countries proscribed by section 126.1 of ITAR in determining whether those personnel may be offered a role or allocated work that involves access to Controlled Material;
  1. (e)
    Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race and nationalities and substantive contacts of personnel who have or may have access to Controlled Material;
  1. (f)
    Require personnel involved in projects which access Controlled Material to notify the Applicant of any change to their citizenship or permanent residency status, nationalities or substantive contacts;
  1. (g)
    Restrict access to Controlled Material to particular personnel based on their current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR;
  1. (h)
    Record information relating to security clearances granted to personnel who are under the control and the direction of the Applicant in relation to work requiring access to Controlled Material;
  1. (i)
    Impose limitations or prohibitions on access to Controlled Material on persons not authorised to access the Controlled Material;
  1. (j)
    Maintain records of the current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities of persons who have or will have access to Controlled Material, with distribution limited to only those persons with a need to know, for the purposes of determining their ability to participate in a particular engagement.
  1. (k)
    Establish security systems and access protocols that will prevent the unauthorised export or transfer (including re-export or re-transfer) of Controlled Material;
  1. (l)
    Disclose, if and when required, current citizenships, prospective citizenships, previous citizenships, permanent residency, race or nationalities, or substantive contacts where such contacts are affiliated with countries proscribed by section 126.1 of ITAR, of the Applicant's personnel in Queensland to:
  1. (i)
    the US Department of State;
  2. (ii)
    the US Department of Commerce;
  3. (iii)
    the Australian Department of Defence; and
  4. (iv)
    any other person or organisation for which, or on whose behalf, or at whose request the Applicant undertakes work in respect of which the Applicant has directly or indirectly an obligation not to transfer Controlled Material to persons of certain nationalities.
  1. In this exemption:
  1. (a)
    "Act" means the Anti-Discrimination Act 1991;
  2. (b)
    "Applicant" means Leidos Australia Pty Ltd (ACN 612 590 155)
  3. (c)
    "Controlled material" means material (including equipment, technology, articles and services) and information (including classified or sensitive information and technical data) to which the security requirements apply;
  4. (d)
    "EAR" means the Export Administration Regulations of the US;
  5. (e)
    "ITAR" means the International Trafficking in Arms Regulations of the US;
  6. (f)
    "Personnel" means the current and prospective workforce of the Applicant, including employees, contract workers, employees of contractors and candidates or applicants for these roles;
  7. (g)
    "Security requirements" means any of the following:
  1. (i)
    requirements of Australian or US laws, including but not limited to ITAR and EAR, including requirements of any permit, licence or approval granted, or agreement made, under those laws;
  2. (ii)
    contractual requirements applying to the Applicant and relating to any of the requirements mentioned in subparagraph (i) above.
  1. (h)
    "US" means United States of America.

Schedule: Conditions

  1. This exemption applies only to the Applicant's conduct where:
  1. (a)
    it is necessary to enable the Applicant to obtain and maintain US export licenses and approvals or to perform contractual obligations which involve access to Controlled Material;
  1. (b)
    the Applicant has taken all steps reasonably available to avoid engaging in conduct which would otherwise be in breach of sections 14, 15, 15A and 124  of the Act, including:
  1. (i)
    reliance of ITAR exemptions, exceptions or other provisions, including section 126.18 of ITAR, where applicable;
  2. (ii)
    where personnel are nationals or dual nationals of a country not approved for access to Controlled Material, then the Applicant will either request the US Department of State, or request the relevant export license holders to request the US Department of State to amend the relevant export licenses to enable those personnel to have access to Controlled Material, unless the Applicant, on reasonable grounds, determines that either:
    1. the personnel are not the best candidate for the relevant position; or
    2. such an application does not have significant prospects of success,
  3. (iii)
    in the event the US Department of State requires the Applicant to provide further information specific to an individual, then with the consent of the individual, the Applicant will work with the individual to supply all relevant information to the US Department of State so than an application for approval may be made in relation to that individual.
  1. Where, pursuant to this exemption, the Applicant wishes to reserve the right to make a conditional offer of employment in relation to a position which will or may involve access to Controlled Material, any advertisement, invitation for expressions of interest, or other promotional information referring to the position must include the information that:
  1. (a)
    the position will or is likely to require access to Controlled Material and that any individual occupying the position must be able to satisfy the ITAR-based requirements which may require specific authorisation for that individual to access Controlled Material; and
  1. (b)
    if a candidate for the position is concerned as to whether or not they will satisfy the requirement in (a) above, the candidate should contact a nominated member of the Applicant's personnel who is able to provide relevant information, including information about the scope of the exemption and the candidate's individual rights.
  1. The applicant must provide to the Queensland Human Rights Commission a written report for every 12-month period from the date of this exemption order. Each report must be provided within 21 days from the end of the relevant reporting period. Each report must detail:
  1. (a)
    the steps it has taken to comply with the terms of the exemption;
  1. (b)
    the number of persons affected by the exemption, the nature of the effects and the steps taken to redress any adverse effects; and
  1. (c)
    the implementation of and compliance generally with the terms of the exemption.

Footnotes

[1] See clause 3 of the Form 83 Application filed 31 January 2022. 

[2] Received 21 March 2022.

[3] Filed 16 May 2022.

[4] See the further submissions of the applicant, filed 27 June 2022, Appendix A, paragraphs 1-2.

[5] Which occurred (via email) on 17 October 2022.

[6] [2021] QIRC 229

[7] Including the affidavits of RDA staff Ms Lisa Morrow, Trade Compliance Manager, and Ms Fiona Ryan, General Manager for Human Resources, filed 27 June 2022.

[8] International Traffic in Arms Regulations (22 CFR 120-130) §126.1(d)(2).

[9] Submissions of RDA filed 1 March 2022, paragraph 13.

[10] Anti-Discrimination Act 1991 s 174B(b).

[11] Re: Kalwun Development Corporation Limited [2019] QIRC 141, [6].

[12] United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT [12].

[13] Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16.

[14] City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450.

[15] Ibid.

[16] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.

[17] Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.

[18] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.

[19] Human Rights Act 2019 (Qld), s 3.

[20] [2020] QIRC 194.

[21] Exemption application re: Boeing Australia Holdings Pty Ltd and related entities [2003] QADT 21.

[22] Exemption application re: Raytheon Australia Pty Ltd & Ors [2008] QADT 1.

[23] Exemption application re: Boeing Australia Holdings Pty Limited & Ors (No. 3) [2008] QADT 34.

[24] Re: Leidos Australia Pty Ltd [2021] QIRC 229.

[25] Submissions of QCU, paragraph 37.

[26] Affidavit of Fiona Ryan filed 27 June 2022; Affidavit of Lisa Dianne Morrow filed 27 June 2022.

[27] Further submissions of the Applicant, Schedule 1.

[28] Affidavit of Fiona Ryan filed 27 June 2022, paragraph 9; Affidavit of Lisa Dianne Morrow filed 27 June 2022, paragraph 5.

[29] Affidavit of Fiona Ryan filed 27 June 2022, paragraph 10.

[30] See Ss 24 and 25 of the AD Act.

[31] See Leidos at [83] and [84]

[32] (1998) 193 CLR 280.

[33] Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) [2008] QADT 34; Chivers v State of Queensland (Queensland Health) [2014] QCA 141, [57].

[34] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [294]-[295].

[35] Ibid, [73].

[36] Section 15 of the HR Act.

[37] [2003] QADT 21 [12].

[38] Sunshine Coast Regional Council [No.2] [2021] QCAT 439.

[39] Re: Leidos Australia Pty Ltd [2021] QIRC 229.

Close

Editorial Notes

  • Published Case Name:

    Re: Rheinmetall Defence Australia Pty Ltd

  • Shortened Case Name:

    Re: Rheinmetall Defence Australia Pty Ltd

  • MNC:

    [2022] QIRC 440

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    14 Nov 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boeing Australia Holdings Pty Ltd & related entities (2003) QADT 21
4 citations
Jump To
Cite 1 - (2003) QADT 21
Cite 2 - (2003) QADT 21
Cite 3 - (2003) QADT 21
Cite 4 - (2003) QADT 21
Chivers v State of Queensland[2014] 2 Qd R 561; [2014] QCA 141
2 citations
Jump To
Cite 1 - [2014] QCA 141
Cite 2 - [2014] QCA 141
City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 9 2-450
2 citations
Jump To
Cite 1 - (1992) EOC 9 2-450
Cite 2 - (1992) EOC 9 2-450
Exemption application re Boeing Australia Holdings Pty Ltd and Ors (No. 3) (2008) QADT 34
3 citations
Jump To
Cite 1 - (2008) QADT 34
Cite 2 - (2008) QADT 34
Cite 3 - (2008) QADT 34
Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16
2 citations
Jump To
Cite 1 - [2001] QADT 16
Cite 2 - [2001] QADT 16
Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869
1 citation
Jump To
Cite 1 - [2009] VCAT 1869
Minister for Education and Commissioner for Equal Opportunity & Ors (1987) EOC 9 2-198
3 citations
Jump To
Cite 1 - (1987) EOC 9 2-198
Cite 2 - (1987) EOC 9 2-198
Cite 3 - (1987) EOC 9 2-198
Qantas Airways Ltd v Christie (1998) 193 CLR 280
4 citations
Jump To
Cite 1 - (1998) 193 CLR 280
Cite 2 - (1998) 193 CLR 280
Cite 3 - (1998) 193 CLR 280
Cite 4 - (1998) 193 CLR 280
Raytheon Australia Pty Ltd & Ors [2008] QADT 1
2 citations
Jump To
Cite 1 - [2008] QADT 1
Cite 2 - [2008] QADT 1
Re Kalwun Development Corporation Ltd [2019] QIRC 141
2 citations
Jump To
Cite 1 - [2019] QIRC 141
Cite 2 - [2019] QIRC 141
Re: Ipswich City Council [2020] QIRC 194
2 citations
Jump To
Cite 1 - [2020] QIRC 194
Cite 2 - [2020] QIRC 194
Re: Leidos Australia Pty Ltd [2021] QIRC 229
4 citations
Jump To
Cite 1 - [2021] QIRC 229
Cite 2 - [2021] QIRC 229
Cite 3 - [2021] QIRC 229
Cite 4 - [2021] QIRC 229
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 9 2-782
2 citations
Jump To
Cite 1 - (1996) EOC 9 2-782
Cite 2 - (1996) EOC 9 2-782
Sunshine Coast Regional Council [No 2] [2021] QCAT 439
2 citations
Jump To
Cite 1 - [2021] QCAT 439
Cite 2 - [2021] QCAT 439
United Synergies Ltd [2015] QCAT 89
2 citations
Jump To
Cite 1 - [2015] QCAT 89
Cite 2 - [2015] QCAT 89

Cases Citing

Case NameFull CitationFrequency
Re: Children by Choice Association Incorporated [2023] QIRC 2932 citations
Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 1332 citations
Re: Rohde & Schwarz (Australia) Pty Ltd [2024] QIRC 162 citations
Re: Saab Australia Pty Ltd [2025] QIRC 211 citation
1

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